– Uzair Khan
The International Court of Justice has ruled to take measures to prevent direct public incitement, protect the lives of Palestinians, and enable the basic humanitarian services and relief work in Gaza. Under the court’s decision, Israel must report to the court within a month on what it’s doing to uphold the order.
The ICJ is the principal judicial organ of the United Nations seated at the Peace Palace in The Hague (Netherlands). Established under the United Nations Charter in June 1945 and began its activities in April 1946, it inherits its legacy from the Permanent Court of International Justice established in 1920 which was abandoned in 1946 with the demise of the League of Nations. The Court is composed of 15 judges elected for a nine-year term by the UN General Assembly and Security Council. The Court has a twofold role to settle in accordance with international law, legal disputes submitted to it by member states and to give advisory opinions on legal questions referred to it by organs and the agencies of the UN.
ICJ observation on situation in Gaza
On December 29, 2023 South Africa filed in the Registry of the Court an Application instituting proceedings against Israel concerning alleged violations in the Gaza Strip. It charged Israel of violation of the Convention on the Prevention and Punishment of the Crime of Genocide 1948.
The Court observed that the military operation conducted by Israel following the attack of 7 October 2023 has resulted in a large number of deaths and injuries, as well as the massive destruction of homes, the forcible displacement of the vast majority of the population, and extensive damage to civilian infrastructure. While figures relating to the Gaza Strip were not independently verified, recent information indicated that 25,700 Palestinians have been killed, over 63,000 injuries have been reported, over 360,000 housing units have been destroyed or partially damaged and approximately 1.7 million persons have been internally displaced till the hearing of the case. Palestinians in the Gaza Strip have been deprived access to water, food, fuel, electricity and other essentials of life, as well as to medical care and medical supplies. In this regard, the Court have taken note of a statement made on 5 January 2024 by the United Nations Under-Secretary-General for Humanitarian Affairs and Emergency Relief Coordinator, a report of 21 December 2023 by the World Health Organization following a mission to North Gaza, and a statement issued on 13 January 2024 by the Commissioner-General of the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA).
The Court also referred to the statement by the UNRWA Commissioner-General that the crisis in Gaza is “compounded by dehumanising language”. In this regard, the Court has taken note of several statements made by senior Israeli officials. It calls attention, in particular, to the following examples: statements made by Mr Yoav Gallant, Defence Minister of Israel, on 9 and 10 October 2023, by Mr Isaac Herzog, President of Israel, on 12 October 2023, and by Mr Israel Katz, then Minister of Energy and Infrastructure of Israel, on 13 October 2023. The Court also takes note of a press release of 16 November 2023, in which 37 Special Rapporteurs, Independent Experts and members of Working Groups part of the Special Procedures of the United Nations Human Rights Council voiced alarm over “discernibly genocidal and dehumanising rhetoric coming from senior Israeli government officials”. Concerns were also expressed on 27 October 2023 by the United Nations Committee on the Elimination of Racial Discrimination about “the sharp increase in racist hate speech and dehumanization directed at Palestinians since 7 October”.
Court’s Ruling:
The State of Israel being a member of the Convention, shall, in accordance with its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide, in relation to Palestinians in Gaza, take all measures within its power to prevent the commission of all acts within the scope of Article II of the Convention, in particular killing members of the group; causing serious bodily or mental harm to members of the group; deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; and imposing measures intended to prevent births within the group. These measures were supported by 15 judges and voted against by 2 judges. It also stated that the State of Israel shall ensure with immediate effect that its military does not commit any acts described above.
It also ordered that the State of Israel shall take all measures within its power to prevent and punish the direct and public incitement to commit genocide in relation to members of the Palestinian group in the Gaza Strip. The State of Israel shall also take immediate and effective measures to enable the provision of urgently needed basic services and humanitarian assistance to address the adverse conditions of life faced by Palestinians in the Gaza Strip; both these measures were passed with 16-1 vote with lone Ugandan Justice Julia Sebutinde voting against the move.
Further, it calls the State of Israel to take effective measures to prevent the destruction and ensure the preservation of evidence related to allegations of acts within the scope of Article II and Article III of the Convention on the Prevention and Punishment of the Crime of Genocide against members of the Palestinian group in the Gaza Strip. The State of Israel shall also submit a report to the Court on all measures taken to give effect to this Order within one month from the date of this Order. Both these measures were passed by 15-2 votes.
The effectiveness of the ICJ has been difficult to assess because of its methodological difficulties in measuring judgement compliance. In 2014, the President of the ICJ Justice Joan E. Donoghue, a US citizen who announced the verdict in this case remarked that the compliance of the ICJ rulings is ¾ of the court judgements. The ICJ has witnessed open defiance too in a few cases.
Even after ten days of the interim order, there is little evidence that Israel is abiding by the provisional measures. The reason for not abiding on the part of Israel is the nature of geopolitics in the United Nations Security Council as the US enjoys veto power. Article 94 of the UN Charter says that Each Member of the United Nations undertakes to comply with the decision of the International Court of Justice in any case to which it is a party. If any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court, the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment. But in practice, this provision has not been used by prevailing states. (Donoghue, 2014).
Regardless of the compliance, the global community, particularly the western nations have to take note of this ongoing crisis in Palestine. To an extent, this will change the western discourse of the crisis, as even US courts have acknowledged the same. It is hoped that the unwithering support of Israel will be checked and the global community will pressurize Israel and its allies to implement the measures pronounced by the ICJ and upheld by international law.
[Uzair Khan is a doctoral scholar in International Organization Division at the Centre for International Politics, Organization and Diplomacy at School of International Studies, Jawahar Lal Nehru University, New Delhi.]
